Wilber v. Berryhill
Filing
23
DECISION AND ORDER granting 12 Commissioner's Motion for Judgment on the Pleadings; denying 16 Plaintiff's Motion for Judgment on the Pleadings. Signed by Hon. Michael A. Telesca on 10/29/2018. (Clerk to close case.) (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TAMMIE R. WILBER,
Plaintiff,
17-CV-621(MAT)
DECISION
and ORDER
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
INTRODUCTION
Tammie
R.
Wilber,
(“Plaintiff”),
who
is
represented
by
counsel, brings this action pursuant to the Social Security Act
(“the
Act”),
seeking
review
of
the
final
decision
of
the
Commissioner of Social Security (“the Commissioner”) denying her
applications
for
Disability
Insurance
Benefits
(“DIB”)
and
Supplemental Security Income (“SSI”). This Court has jurisdiction
over the matter pursuant to 42 U.S.C. § 405(g). Presently before
the Court are the parties’ motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
Dkt. ##12, 16.
BACKGROUND
A.
Procedural History
Plaintiff filed applications for DIB and SSI on March 5, 2013,
alleging disability beginning June 15, 2012, based on arthritis,
post-traumatic stress disorder (“PTSD”), seizure disorder, chronic
obstructive pulmonary disease (“COPD”), depression, and anxiety.
T. 84, 188.1 Plaintiff’s application was denied, and she requested
a hearing before an Administrative Law Judge (“ALJ”). T. 114-15.
ALJ Donald McDougall conducted a hearing on June 26, 2015,
where Plaintiff testified with counsel. T. 44-82. Following the
hearing, Plaintiff’s case was transferred to ALJ Michael Devlin due
to ALJ McDougall’s retirement. T. 24.
On December 1, 2015, ALJ Devlin issued a decision finding
Plaintiff not disabled. T. 21-43. Plaintiff requested a review of
the ALJ’s decision, which the Appeals Council denied. T. 1-5, 15456. The ALJ’s determination thus became the final decision of the
Commissioner
subject
to
judicial
review
under
42
U.S.C.
§ 1383(c)(3). This action followed. Dkt. #1.
The issue before the Court is whether the Commissioner’s
decision
that
substantial
Plaintiff
evidence
and
was
not
free
of
disabled
legal
is
error.
supported
See
Pl.
by
Mem.
(Dkt. #12-1) 23-29; Comm’r Mem. (Dkt. #16-1) 18-29.
B.
The ALJ’s Decision
In applying the familiar five-step sequential analysis, as
contained in the administrative regulations promulgated by the
Social Security Administration (“SSA”), see 20 C.F.R. §§ 404.1520,
416.920; Lynch v. Astrue, No. 07-CV-249, 2008 WL 3413899, at *2
(W.D.N.Y. Aug. 8, 2008) (detailing the five steps), the ALJ found:
(1) Plaintiff did not engage in substantial gainful activity since
1
“T.__” refers to pages of the administrative record. Dkt. #9.
2
her
onset
date;
(2)
she
had
the
severe
impairments
of
osteoarthritis of the thumb, bilateral shoulder bursitis, rotator
cuff sprain and strain, right ankle sprain and strain, cervical
disc displacement
without
myelopathy,
and
migraine
headaches;
(3) her impairments did not meet or equal the Listings set forth at
20 C.F.R. § 404, Subpt. P, Appx. 1. The ALJ found that Plaintiff
retained the residual functional capacity (“RFC”) to perform light
work with additional limitations: Plaintiff could perform work
requiring no more than frequent use of the hands or wrists, no
exposure to temperature extremes, or extremes of fumes, dusts,
gases, or other respiratory irritants, Plaintiff was limited to
jobs allowing her to change positions for one to two minutes every
one-half
hour,
and
she
could
not
climb
ropes,
ladders,
or
scaffolds, Plaintiff could not be exposed to heights or dangerous,
moving machinery, and she could only occasionally balance, stoop,
crouch, and climb stairs and ramps and could never kneel or crawl;
(4) Plaintiff could not perform her past relevant work as a
waitress; and (5) relying upon on vocational expert testimony, the
ALJ determined that a person with Plaintiff’s age, education, work
experience, and RFC could make a successful adjustment to unskilled
work existing in significant numbers in the national economy,
including parking lot cashier and small products assembler. The ALJ
concluded that Plaintiff was not disabled under the Act. T. 26-39.
3
DISCUSSION
A.
Scope of Review
A federal court should set aside an ALJ decision to deny
disability benefits only where it is based on legal error or is not
supported by substantial evidence. Balsamo v. Chater, 142 F.3d 75,
79 (2d Cir. 1998). “Substantial evidence means such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Green–Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.
2003) (internal quotation marks omitted).
B.
Step Two Analysis
Plaintiff first contends that the ALJ failed to consider her
mental impairments as “severe” and failed to develop the record.
Pl. Mem. 22-24.
At step two of the five-step analysis, the ALJ must consider
a claimant’s medically determinable impairments and decide whether
they are “severe.” A “severe” impairment is “one that significantly
limits a claimant’s ability to perform basic work activities,” such
as “walking, standing, sitting, lifting, [etc.], [c]apacities for
seeing, hearing, and speaking, and [u]nderstanding, carrying out,
and
remembering
simple
instructions.”
Faison
v.
Berryhill,
No. 16-CV-6044, 2017 WL 3381055, at *2 (W.D.N.Y. Aug. 5, 2017)
(internal quotations and citations omitted). “It is the claimant's
burden to show at step two that she has a severe impairment.” Rye
v. Colvin, No. 14-CV-170, 2016 WL 632242, at *3 (D. Vt. Feb. 17,
4
2016) (internal quotation omitted). “The mere presence of a disease
or impairment, or establishing that a person has been diagnosed or
treated for a disease or impairment is not, by itself, sufficient
to render a condition severe.” Ryan v. Colvin, No. 15-CV-74S, 2017
WL 2240256, at *3 (W.D.N.Y. May 23, 2017).
A step two error is not reversible and does not necessitate
remand where the record is devoid of evidence that the allegedly
omitted impairments were severe. Id. at *4 (declining to remand
where the plaintiff did not “specify why each of these impairments
[that he contended were omitted at step two] meets the regulatory
definition of a ‘severe’ impairment”).
In concluding that Plaintiff’s depression and anxiety were not
severe, the ALJ discussed the mental status examination findings of
her treating providers and cited the examination findings that were
inconsistent
with
significant
mental
limitations.
T.
30.
For
example, mental status examinations routinely found that Plaintiff
presented herself in an appropriate fashion, made good eye contact,
and spoke with logical, coherent, and goal-directed speech. T. 30,
287,
308,
314,
317,
320,
330,
336,
632,
648.
Plaintiff’s
counselors, Ms. Haseley and Ms. MacDougall, repeatedly observed
that she was cooperative and interested, with good insight and
judgment, and that she could attend and maintain focus. T. 30, 287,
298, 302, 305, 308, 314, 323-24, 509, 496, 499-500, 503, 512, 518,
526, 535, 539, 543, 550, 559, 565, 573, 577, 586, 589, 600, 605,
5
608,
614,
628,
632,
641,
646,
648.
At
multiple
sessions,
Ms. MacDougall assessed Plaintiff’s mood as mildly depressed or
anxious. T. 314, 317, 320, 330, 336, 648. Her mood was described as
euthymic at other counseling sessions. T. 523, 548, 623.
At a July 2013 medication management appointment, psychiatrist
Dr. Lopez observed that “[e]xcept for some degree of tearfulness,
she is doing well”. T. 283. The progress notes from the Niagara
County Department of Mental Health indicate that her GAF,2 although
not determinative on the question of severity, was consistently
assessed
at
55-60,
indicating
moderate
symptoms
or
moderate
difficulty in social or occupational functioning. T. 278-287,
302-337, 590-648.
Consultative psychologist Dr. Ippolito concluded that, despite
dysthymic mood and tearful affect upon examination, Plaintiff’s
psychiatric symptoms were not sufficiently significant to interfere
with her ability to function on a daily basis. T. 31, 352.
Counselor
Laura Haseley’s
observations of
Plaintiff
from
December 2014 through May 2015 indicated cheerful mood, open and
cooperative attitude, and good judgment. T. 496, 500, 503, 509,
512, 518, 525. Plaintiff’s symptoms of depression were reported as
being “okay,” “in control,” and when her anxiety worsened, she
2
The Global Assessment of Functioning is a rating of overall
psychological functioning on a scale of 0 to 100. See Diagnostic and
Statistical Manual of Mental Disorders 34 (4th ed., text revision, 2000)
(“DSM-TR-IV”). The most recent edition of the DSM eliminated the use of the
GAF scale. See Mainella v. Colvin, No. 13-CV-2453(JG), 2014 WL 183957, at *5
(E.D.N.Y. Jan. 14, 2014).
6
requested
Xanax,
which
appeared
to
help
in
recent
sessions.
T. 505, 515, 530. At a January 2015 appointment, for example,
Plaintiff told Ms. Conboy that she was “doing better now” and that
medication was helping improve her mental symptoms “tremendously.”.
T. 523.
Plaintiff
is
correct
in
that
the
record
contains
over
200 pages of psychiatric notes. Pl. Mem. 22. However, the majority
of the examination findings therein are benign and/or unremarkable.
Under these circumstances, substantial evidence supports the ALJ’s
determination that Plaintiff’s mental symptoms were not severe.
T. 29-33.
In sum, the Court finds that substantial evidence supports the
ALJ’s conclusion that Plaintiff’s mental symptoms were not severe
within the meaning of the regulations.
C.
SSR 06-03P
Plaintiff avers that the ALJ failed to properly evaluate the
opinion of her treating mental health counselor pursuant to Social
Security Ruling (“SSR”) 06-03P. Pl. Mem. 28-32.
At the time the ALJ decided Plaintiff’s claim in December,
2015, he was required to evaluate opinions from non-acceptable
medical sources based on several factors to the extent they were
applicable under the particular facts of the case. See SSR 06-03p,
2006 WL 2329939, at *4-5 (S.S.A. 2006). Those included: how long
the source had known and how frequently the source had seen the
7
claimant; how consistent the opinion is with other evidence; the
degree to which the source presents relevant evidence to support an
opinion; how well the source explains the opinion; whether the
source
has
a
specialty
or
area
of
expertise
related
to
the
claimant's impairment(s); and any other factors that tend to
support or refute the opinion. Id.3
Laura Haseley, Licensed Master Social Worker with the Niagara
County Department of Mental Health, filled out a Form Mental
Impairment Questionnaire for Plaintiff that indicated a “fair to
poor” prognosis with impairments lasting at least twelve months;
that Plaintiff would be absent from work more than three times a
month; and that she had poor or no ability to function in the
majority of abilities and aptitudes to do unskilled work, such as
carrying out short and simple instructions, maintain attention for
two hour segments, sustain an ordinary routine without special
supervision,
and
unreasonable
number
Ms.
noted
Haseley
perform
and
that
at
a
length
the
consistent
of
rest
clinical
pace
periods.
findings
without
T.
an
489-94.
supporting
her
assessed limitations as “outcome measures taken every 6 months show
this impairment.” T. 492.
The ALJ here appropriately considered that Ms. Haseley’s
restrictive
assessment
was
inconsistent
with
the
examination
3
SSR 06-03p was rescinded effective March 27, 2017. See 82 Fed. Reg.
16,869 (April 6, 2017).
8
findings of record. T. 32, 489-94. As the ALJ discussed at length
in
his
decision,
the
mental
status
examination
findings
of
Plaintiff’s treating sources were inconsistent with severe mental
limitations of the type assessed by Ms. Haseley. T. 29-30. For
example, while Ms. Haseley indicated in her questionnaire that
Plaintiff had a "poor" or no ability to carry out even very short
and simple instructions or perform tasks at a consistent pace,
T. 32, 492, Ms. Haseley's mental status examinations, and those of
her predecessor Ms. MacDougall, contradict these assessments. See
T.30, 287, 298, 302, 305, 308, 314, 323-24, 496, 499-500, 503, 509,
512, 518, 526, 535, 539, 543, 550, 559, 565, 573, 577, 586, 589,
600, 605, 608, 614, 628, 632, 641, 646, 648 (observing good memory,
good judgment, and the ability to attend and maintain focus during
mental status examination). Inconsistency with the record as a
whole is an important factor suggesting that an opinion deserves
less
weight.
See
20
C.F.R.
§
404.1527(c)(4),
416.927(c)(4)
("Generally, the more consistent a medical opinion is with the
record as a whole, the more weight we will give to that medical
opinion."). The ALJ thus properly considered and afforded little
weight
to
limitations
Ms.
in
Haseley’s
many
areas
opinion
of
that
mental
Plaintiff
functioning
had
extreme
because
her
assessments were notably inconsistent with the examination findings
in the record. T. 32, 489-94.
9
In a related argument, Plaintiff contends that the ALJ should
have re-contacted Ms. Haseley for additional information about her
opinions to the extent that her assessment was inconsistent with
her own treatment notes. Pl. Mem. 32.
Even assuming Ms. Haseley
was a treating physician for purposes of Plaintiff’s motion, “[t]he
mere fact that medical evidence is conflicting or internally
inconsistent does not mean that an ALJ is required to re-contact a
treating physician. Rather, because it is the sole responsibility
of the ALJ to weigh all medical evidence and resolve any material
conflicts in the record where the record provides sufficient
evidence for such a resolution, the ALJ will weigh all of the
evidence and see whether it can decide whether a claimant is
disabled based on the evidence he has, even when that evidence is
internally inconsistent.”
29–30 (2d Cir. 2012).
Micheli v. Astrue, 501 Fed. Appx. 26,
An ALJ may properly discount even a treating
physician’s opinion due to its inconsistency, among other things,
the source’s own treatment notes. See Monroe v. Colvin, 676 Fed.
Appx. 5, 7-8 (2d Cir. 2017). As explained above, that is what the
ALJ has done here.
The Court has considered Plaintiff’s remaining argument and
finds it to be without merit.
For all of these reasons, the ALJ’s determination is free of
legal error and is supported by substantial evidence in the record.
10
CONCLUSION
For
the
foregoing
reasons,
the
Court
finds
that
the
Commissioner’s decision is not legally flawed and is based on
substantial
evidence.
Accordingly,
it
is
affirmed.
The
Commissioner’s motion for judgment on the pleadings is granted, and
Plaintiff’s motion for judgment on the pleadings is denied. The
Clerk of Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
October 29, 2018
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